98-343 A
Tobacco Marketing and Advertising Restrictions
in S. 1648, 105th Congress:
First Amendment Issues
April 8, 1998
Henry Cohen
Legislative Attorney
American Law Division
*98-343*
*98-343*
ABSTRACT
Section 906 of S. 1648, 105th Congress, would prohibit, among other things, tobacco
advertising on billboards and the Internet. Although the First Amendment provides only
limited protection to commercial speech, S. 1648's marketing and advertising restrictions, to
the extent that they deny adults access to tobacco advertising more than is necessary to protect
children, may be unconstitutional.
Tobacco Marketing and Advertising Restrictions in S. 1648,
105th Congress: First Amendment Issues
Summary
This report considers whether § 906 of S. 1648, 105th Congress, would violate
the First Amendment’s guarantee of freedom of speech. Section 906 would prohibit,
among other things, (1) “outdoor tobacco product advertising, including billboards,
posters,” etc., (2) advertising “tobacco products in any arena or stadium where
athletic, musical, artistic, or other social or cultural events or activities occur,” (3) the
use of “a human image or a cartoon character or cartoon-type character in [tobacco]
advertising, labeling, or promotional material,” and (4) tobacco product advertising
on the Internet “unless such an advertisement is inaccessible in or from the United
States.”
The First Amendment provides only limited protection to commercial speech,
such as tobacco advertising. The Supreme Court has prescribed the Central Hudson
test to determine the constitutionality of governmental restrictions of commercial
speech. This test requires that restrictions of non-misleading commercial speech
directly advance a substantial governmental interest in a manner that is not overbroad.
In 1996, in 44 Liquormart, Inc. v. Rhode Island, the Supreme Court increased the
protection that the Central Hudson test guarantees to commercial speech, expressing
skepticism of “regulations that seek to keep people in the dark for what the
government perceives to be their own good.” One may apparently infer from this
decision that restrictions on truthful tobacco advertising that is not aimed at minors
would likely be unconstitutional.
Subsequent to 44 Liquormart, a federal court of appeals upheld a Baltimore
ordinance that prohibited tobacco advertisements on billboards, except in certain
commercially and industrially zoned areas of the city. It reasoned that, although the
ordinance reduced the opportunities for adults to receive tobacco advertising, it did
not preclude them, and the ordinance constituted a reasonable way to attempt to limit
underage smoking. S. 1648's total ban on billboards with tobacco advertisements, by
contrast, would seem more likely to be found unconstitutional. Similarly, its other
marketing and advertising restrictions, to the extent that they deny adults access to
tobacco advertising more than is necessary to protect children, may be
unconstitutional.
Contents
First Amendment Protection for Commercial Speech . . . . . . . . . . . . . . . . . 2
Applying Central Hudson: First Prong . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Applying Central Hudson: Second Prong . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Applying Central Hudson: Third Prong . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Applying Central Hudson: Fourth Prong . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Effect of 44 Liquormart . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Conclusions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Tobacco Marketing and Advertising Restrictions
in S. 1648, 105th Congress:
First Amendment Issues
This report considers whether § 906 of S. 1648, 105th Congress, the “Preventing
Addiction to Smoking among Teens Act” or the “PAST Act,” would violate the First
Amendment’s guarantee of freedom of speech. Section 906 contains restrictions on
marketing and advertising of tobacco products. It would prohibit the following 18
things:1
(1) “outdoor tobacco product advertising, including billboards, posters,” etc.
(2) advertising “tobacco products in any arena or stadium where athletic, musical,
artistic, or other social or cultural events or activities occur.”
(3) the use of “a human image or a cartoon character or cartoon-type character in
[tobacco] advertising, labeling, or promotional material.”
(4) tobacco product advertising on the Internet “unless such an advertisement is
inaccessible in or from the United States.”
(5) for each manufacturer and retailer, more than a specified number of “point-of-sale
advertisements in or at each location at which tobacco products are offered for sale.”
Such advertisements could be no larger than a specified size, consist of other than
black letters on a white background, or be “located within 2 feet of any fixture on
which candy is displayed for sale.”
(6) playing or viewing of audio and video advertisements at points of sale.
(7) “[d]isplay fixtures in the form of signs consisting of brand name and price that are
. . . larger than 2 inches in height.”
(8) use of “a trade or brand name of a nontobacco product as the trade or brand name
for a cigarette or smokeless tobacco product,” except for trade or brand names in use
on or before January 1, 1995.
(9) advertising tobacco products in a medium other than a newspaper, magazine,
billboard, poster, placard, nonpoint-of-sale promotional material (including direct
mail), point-of-sale promotional material, audio or visual formats delivered at a pointof-sale, unless the manufacturer, distributor, or retailer that intends to advertise
notifies the Commissioner of the Food and Drug Administration not less than 30 days
prior to the date on which such medium is to be used.
(10) payments “by any manufacturer, distributor, or retailer for the placement of any
tobacco product or tobacco product package or advertisement — (i) as a prop in any
television program or motion picture produced for viewing by the general public; or
(ii) in a video or on a video game machine.”
1
The following list contains summaries, not complete descriptions, of the items in the bill.
The items in the bill appear in the same order as in the list, but are not numbered according
to the same format, and do not all appear phrased as prohibitions.
CRS-2
(11) direct or indirect payments “by any manufacturer, distributor, or retailer to any
entity for the purpose of promoting the image or use of a tobacco product through
print or film media that appeals to individuals under 18 years of age or through a live
performance by an entertainment artist that appeals to such individuals.”
(12) labeling or advertising for a tobacco product in other than black text on a white
background, except (i) in any facility where vending machines and self-service displays
are permitted under this chapter if the advertising involved . . . is not visible from
outside of the facility; and . . . is affixed to a wall or fixture in the facility,”2 or (ii) that
appears in any “adult publication,” which § 906 would define as publications with
fewer than a specified percentage or number of readers under 18.
(13) tobacco advertising in audio format unless “limited to words only with no music
or sound effects.”
(14) tobacco advertising in video format unless “limited to static black text only on
a white background,” with any audio in the advertising limited as in # 13.
(15) marketing, licensing, distributing, or selling any non-tobacco item or service
bearing the brand name, “logo, symbol, motto, selling message, recognizable color or
pattern of colors, or any other indicia of product identification similar or identifiable
to those used for any brand of tobacco products.”
(16) offering to any person purchasing tobacco products any gift or item other than
a tobacco product in consideration of the purchase, or of furnishing evidence, such
as proofs-of-purchase, of a purchase.
(17) sponsoring “any athletic, musical, artistic, or other social or cultural event, or any
entry or team in any event, in which the brand name, “logo, symbol, motto, selling
message, recognizable color or pattern of colors, or any other indicia of product
identification similar or identifiable to those used for tobacco products is used.”
(18) sponsoring “any athletic, musical, artistic, or other social or cultural event in the
name of the corporation which manufactures the tobacco product” unless (i) both the
corporate name and the corporation were registered and in used in the United States
prior to January 1, 1995; and (ii) the corporate name does not include any brand
name, “logo, symbol, motto, selling message, recognizable color or pattern of colors,
or any other indicia of product identification similar or identifiable with, those used
for any brand of tobacco products.”
First Amendment Protection for Commercial Speech
The First Amendment to the United States Constitution provides that “Congress
shall make no law . . . abridging the freedom of speech, or of the press. . . .” This
language restricts government both more and less than it would if it were applied
literally. It restricts government more in that it applies not only to Congress, but to
all branches of the federal government, and to all branches of state and local
government.3 It restricts government less in that it provides no protection to some
types of speech and only limited protection to others. One type of speech to which
2
Under § 908(i)(1), tobacco vending machines would be restricted to facilities that exclude
individuals under 18. The intention presumably is the same for self-service displays, but the
omission of § 908(j)(1)(C), which is referred to in § 908(i)(2), from the bill (at least from the
version on the Internet) causes this intention not to be stated.
3
Herbert v. Lando, 441 U.S. 153, 168 n.16 (1979).
CRS-3
it applies only limited protection is commercial speech, which is “speech that proposes
a commercial transaction.”4
Commercial speech may be banned if it advertises an illegal product or service,
and, unlike fully protected speech, may be banned if it is unfair or deceptive. Even
when it advertises a legal product and is not unfair or deceptive, the government may
regulate commercial speech more than it may regulate fully protected speech.
Fully protected speech may be restricted only “to promote a compelling interest”
and only by “the least restrictive means to further the articulated interest.”5 For
commercial speech, by contrast, the Supreme Court has prescribed the four-prong
Central Hudson test to determine its constitutionality. This test asks initially (1)
whether the commercial speech at issue is protected by the First Amendment (that is,
whether it concerns a lawful activity and is not misleading) and (2) whether the
asserted governmental interest in restricting it is substantial. “If both inquiries yield
positive answers,” then to be constitutional the restriction must (3) “directly advance[
] the governmental interest asserted,” and (4) be “not more extensive than is necessary
to serve that interest.”6 In Board of Trustees of the State University of New York v.
Fox, the Supreme Court made it easier for the government to satisfy the fourth prong
of the Central Hudson test. It held that the fourth prong is not to be interpreted
“strictly” to require the legislature to use the least restrictive means available to
accomplish its purpose.7 Instead, the Court held, legislation regulating commercial
speech is to be upheld if there is a “‘fit’ between the legislature’s ends and the means
chosen to accomplish those ends,” — “a fit that is not necessarily perfect, but
reasonable . . . .”8 The Court, however, does “not equate this test with the less
rigorous obstacles of rational basis review.”9 In other words, although, to satisfy the
fourth prong, a restriction on commercial speech need not constitute the least
restrictive means to advance the asserted governmental interest, it must be more than
merely rational.
In 1996, in 44 Liquormart, Inc. v. Rhode Island, the Supreme Court increased
the protection that the Central Hudson test guarantees to commercial speech by
indicating that “when a State entirely prohibits the dissemination of truthful,
nonmisleading commercial messages for reasons unrelated to the preservation of a fair
4
Board of Trustees of the State University of New York v. Fox, 492 U.S. 469, 482 (1989)
(emphasis in original).
5
Sable Communications of California, Inc. v. Federal Communications Commission, 492
U.S. 115, 126 (1989).
6
Central Hudson Gas & Electric Corp. v. Public Service Commission of New York, 447 U.S.
557, 566 (1980). In Florida Bar v. Went For It, Inc., 515 U.S. 618 (1995), the Court referred
to the Central Hudson test as having three parts, and referred to its second, third, and fourth
prongs as, respectively, the first, second, and third. In 44 Liquormart, Inc. v. Rhode Island,
116 S. Ct. 1495, 1521 (1996), the Justices seemed to return to the traditional numbering.
7
Fox, supra note 4, at 476.
8
Id. at 480.
9
Florida Bar v. Went For It, Inc., supra note 6, at 632.
CRS-4
bargaining process,” the restriction will be subject to a stricter review by the courts
than a regulation designed “to protect consumers from misleading, deceptive, or
aggressive sales practices.”10 The prohibition in 44 Liquormart was on advertising
the price of alcoholic beverages, not on all advertising of alcoholic beverages.
Therefore, when the Court referred to “entirely” prohibiting the dissemination of
truthful, nonmisleading commercial messages, it apparently included entirely
prohibiting the dissemination of any particular item of truthful, nonmisleading
information.
We will now discuss the application of each of the four prongs of the Central
Hudson test to § 906, considering § 906 in general, rather than considering each of
its 18 prohibitions separately. Then we will consider whether 44 Liquormart affects
our general conclusion. Finally we will consider the constitutionality of each of the
18 prohibitions.
Applying Central Hudson: First Prong
The first prong of the Central Hudson test asks whether the restricted speech
concerns a lawful activity and is not misleading. We will assume that the advertising
is not misleading, as if it is, it is already illegal under § 5 of the Federal Trade
Commission Act, 15 U.S.C. § 45, which prohibits “unfair or deceptive acts or
practices in or affecting commerce.” We will also assume that the advertisements
concern a lawful activity, even though the sale of tobacco products to minors is illegal
in every state.11 We will assume that the advertisements concern a lawful activity
because, even though the stated goal of S. 1648 is to decrease and prevent youth
smoking (§ 3), most of the restrictions in § 906 would affect tobacco advertisements
aimed at adults as well as at minors.
Applying Central Hudson: Second Prong
The second prong of the Central Hudson test asks whether the asserted
governmental interest in restricting the commercial speech in question is substantial.
The Supreme Court, in Posadas de Puerto Rico Associates v. Tourism Company of
Puerto Rico, held that a government’s “interest in the health, safety, and welfare of
its citizens constitutes a ‘substantial’ governmental interest.”12 Although Part VI of
the Court’s opinion in 44 Liquormart questioned some aspects of Posadas, this was
not one of them, and there seems no doubt that § 906 would satisfy the second prong.
10
116 S. Ct. 1495, 1507 (1996). The nine Justices were unanimous in striking down the law,
which prohibited advertising the price of alcoholic beverages, but only parts of Justice
Stevens’ opinion for the Court were joined by a majority of Justices. The quotations above,
for example, are from Part IV of the Court’s opinion, which was joined by only Justices
Kennedy and Ginsburg besides Justice Stevens.
11
U.S. Department of Health and Human Services, Public Health Service, Centers for Disease
Control and Prevention, State Laws on Tobacco Control — United States, 1995.
12
478 U.S. 328, 341 (1986).
CRS-5
Applying Central Hudson: Third Prong
In Posadas, the Supreme Court, applying the third prong of the Central Hudson
test, found reasonable the Puerto Rico legislature’s view that restricting advertising
would directly advance the asserted governmental interest by reducing the demand for
the product advertised (which, in this case, was gambling).13 The Court also cited
with approval a statement from an earlier case that the third prong of Central Hudson
is satisfied where the legislative judgment is “not manifestly unreasonable.”14
In subsequent cases, however, the Court has not deferred as readily to legislative
judgments that a restriction directly advances the asserted governmental interest. In
Edenfield v. Fane,15 for example, the Court struck down a Florida ban on solicitation
by certified public accountants, even though the Court had previously, in Ohralik v.
Ohio State Bar Association,16 upheld a ban on solicitation by attorneys. The Court
found that the government had substantial interests in the ban, including the
prevention of fraud, the protection of privacy, and the need to maintain CPA
independence and to guard against conflicts of interest. However, the Court found
no evidence that the ban directly advanced these interests, and noted, among other
things, that, “[u]nlike a lawyer, a CPA is not ‘a professional trained in the art of
persuasion,’” and “[t]he typical client of a CPA is far less susceptible to manipulation
than the young accident victim in Ohralik.”17
In Ibanez v. Florida Board of Accountancy, the Court held that the Florida
Board of Accountancy could not reprimand an accountant for truthfully referring to
her credentials as a Certified Public Accountant and a Certified Financial Planner in
her advertising and other communication with the public, such as her business cards
and stationery. The Court applied the Central Hudson test, noting that “the State
‘must demonstrate that the harms it recites are real and that its restriction will in fact
alleviate them to a material degree.’”18
In Rubin v. Coors Brewing Co., the Court struck down a federal statute, 27
U.S.C. § 205(e), that prohibits beer labels from displaying alcohol content unless state
law requires such disclosure.19 The Court found sufficiently substantial to satisfy the
second prong of the Central Hudson test the government’s interest in curbing
“strength wars” by beer brewers who might seek to compete for customers on the
basis of alcohol content. However, it concluded that the ban “cannot directly and
materially advance” this “interest because of the overall irrationality of the
13
Id. at 341-342.
14
Id. at 342, citing Metromedia, Inc. v. San Diego, 453 U.S. 490 (1981).
15
507 U.S. 761 (1993).
16
436 U.S. 447 (1978).
17
Edenfield, supra note 15, at 775.
18
512 U.S. 136, 143 (1994).
19
514 U.S. 476 (1995).
CRS-6
Government’s regulatory scheme.”20 This irrationality is evidenced by the fact that
the ban does not apply to beer advertisements, and by the fact that the statute requires
the disclosure of alcohol content on the labels of wines and spirits.
Finally, in 44 Liquormart, the Court, in striking down a prohibition on
advertising the price of alcoholic beverages, found that Rhode Island had not met its
burden of showing that the “ban will significantly advance the State’s interest in
promoting temperance.”21 “[T]he State’s own showing,” the Court wrote, “reveals
that any connection between the ban and a significant change in alcohol consumption
would be purely fortuitous. . . . [A]ny conclusion that elimination of the ban would
significantly increase alcohol consumption would require us to engage in the sort of
‘speculation or conjecture’ that is an unacceptable means of demonstrating that a
restriction on commercial speech directly advances the State’s asserted interest.”22
Cases like Edenfield, Ibanez, Rubin, and 44 Liquormart indicate that, to satisfy
the third prong of the Central Hudson test, the government must present evidence to
support its claim that its restriction on commercial speech directly and materially
advances a substantial governmental interest. In Florida Bar v. Went For It, Inc., the
Court upheld a rule of the Florida Bar that prohibited personal injury lawyers from
sending targeted direct-mail solicitations to victims and their relatives for 30 days
following an accident or disaster.23 The Bar argued “that it has a substantial interest
in protecting the privacy and tranquility of personal injury victims and their loved ones
against intrusive, unsolicited contact by lawyers,”24 and the Court found that “[t]he
anecdotal record mustered by the Bar” to demonstrate that its rule would advance this
interest in a direct and material way was “noteworthy for its breadth and detail”; it
was not “mere speculation and conjecture.”25
When the Food and Drug Administration promulgated tobacco advertising
restrictions, it concluded “that tobacco advertising plays a concrete role in the
decision of minors to smoke, and that each specific restriction on this advertising that
it is adopting will contribute to limiting its effect and thus to protecting the health of
children and adolescents under the age of 18.”26 If this is true, then the advertising
restrictions would, in general, apparently satisfy the third prong of the Central
Hudson test. Of course, it is possible for a court to find some of the restrictions in §
906 constitutional but others unconstitutional.
20
Id. at 488.
21
116 S. Ct. at 1509.
22
Id. at 1510.
23
Florida Bar, supra note 6.
24
Id., 515 U.S. at 624.
25
Id. at 627.
26
61 Fed. Reg. 44,474 (1996). These regulations have not taken effect because a federal
court held that the FDA lacked the statutory authority to implement them. Coyne Beahm, Inc.
v. United States, 958 F. Supp. 1060 (M.D. N.C. 1997).
CRS-7
The FDA, in connection with its regulations, wrote: “It is not necessary in
satisfying this prong of Central Hudson for the agency to prove conclusively that the
correlation [between advertising and minors’ smoking] in fact (empirically) exists, or
that the steps undertaken will completely solve the problem. . . . Rather, the agency
must show that the available evidence, expert opinion, surveys and studies provide
sufficient support for the inference that advertising does play a material role in
children’s tobacco use.”27 This seems accurate, given the Court’s acceptance of
anecdotal evidence (albeit anecdotal evidence “noteworthy for its breadth and detail”)
in Florida Bar v. Went For It, Inc., even though anecdotal evidence by itself cannot
conclusively prove general propositions.
In sum, it appears likely that the restrictions of § 906 would satisfy the third
prong if the government can present evidence that they will reduce the demand for
tobacco and thereby reduce the incidence of tobacco-related illnesses.
Applying Central Hudson: Fourth Prong
We now turn to the fourth and final requirement of the Central Hudson test —
that restrictions on commercial speech represent a reasonable “fit” between the
legislature’s ends and the means chosen to accomplish those ends. As noted above,
this prong requires that a restriction be more than merely rational, but not necessarily
the least restrictive means to advance the asserted governmental interest.28 In
Cincinnati v. Discovery Network, Inc., the Supreme Court struck down a Cincinnati
regulation that banned newsracks on public property if they distributed commercial
publications, but not if they distributed news publications.29 The Court found that the
asserted governmental interest in safety and esthetics was substantial, but that the
distinction between commercial and noncommercial speech “bears no relationship
whatsoever to the particular interests that the city has asserted.”30 The city, therefore,
did not establish “the ‘fit’ between its goals and its chosen means that is required by
our opinion in Fox.”31
In 44 Liquormart, the Court found it “perfectly obvious that alternative forms
of regulation would be more likely to achieve the State’s goal of promoting
temperance. As the State’s own expert conceded, higher prices can be maintained
either by direct regulation or by increased taxation. . . . Even educational campaigns
. . . might prove to be more effective.”32
The Court’s strong language in Cincinnati v. Discovery Network (“no
relationship whatsoever”) and in 44 Liquormart (“perfectly obvious”) suggests that
it found the regulations it struck down in those two cases to be particularly poorly
27
Id.
28
See, text accompanying note 9, supra.
29
507 U.S. 410 (1993)
30
Id. at 424 (emphasis in original).
31
Id. at 428.
32
44 Liquormart, supra note 10, 116 S. Ct. at 1510.
CRS-8
thought-out. Section 906, in general, does not appear similar in this respect.
However, the reasonableness of its 18 restrictions must be considered one by one,
which we do after we consider the effect of 44 Liquormart.
Effect of 44 Liquormart
As noted above, the Supreme Court in 44 Liquormart indicated that a total
prohibition on “the dissemination of truthful, nonmisleading commercial messages for
reasons unrelated to the preservation of a fair bargaining process” will be subject to
a stricter review by the courts than a regulation designed “to protect consumers from
misleading, deceptive, or aggressive sales practices.”33 Section 906, like the speech
restriction struck down in 44 Liquormart, appears primarily intended to reduce
consumption of a dangerous product rather than to protect consumers from unfair
sales practices.34 Section 906, however, unlike the speech restriction struck down in
44 Liquormart, would not impose a total prohibition on any information sought to be
advertised.
In addition, the fact that § 906 is intended to protect minors may help to
distinguish it from the Rhode Island statute. A thread that appears to run through 44
Liquormart is the Justices’ hostility to the paternalistic aspect of Rhode Island’s ban.
In Part IV of the Court’s opinion, Justice Stevens writes:
The First Amendment directs us to be especially skeptical of regulations
that seek to keep people in the dark for what the government perceives to
be their own good.35
In Part V, he adds that mere speculation as to whether “a restriction on
commercial speech directly advances the State’s asserted interest . . . certainly does
not suffice when the State takes aim at accurate commercial information for
paternalistic ends.”36 Justice Scalia, concurring, indicated that he “share[s] Justice
Stevens’ aversion toward paternalistic governmental policies that prevent men and
33
Id. at 1507, quoted in the text accompanying note 10, supra.
34
The “goals and purposes” of S. 1648, spelled out in § 3, all appear to focus on reducing
underage use of tobacco products. The FDA argued that its restrictions were related to the
bargaining process, as they “derive from the fact that, at least as a matter of law, minors are
not competent to use these products.” 61 Fed. Reg. 44,470. It would seem to strengthen the
FDA’s case in this regard if we read this instead to mean that minors are not competent to
resist tobacco advertisements. This argument would also seem available to S. 1648, but with
less force because, though S. 1648 is intended to protect youth, its restrictions apply to more
advertisements aimed at adults, and so seem less designed to protect consumers from
misleading, deceptive, or aggressive sales practices. For example, the FDA’s restrictions
would ban tobacco billboards within 1,000 feet of a school or playground, whereas S. 1648
would ban all outdoor tobacco billboards.
35
44 Liquormart, supra note 10, 116 S. Ct. at 1508.
36
Id. at 1510.
CRS-9
women from hearing facts that might not be good for them.”37 Justice Thomas, in his
concurring opinion, refers to “the antipaternalistic premises of the First
Amendment.”38
Nevertheless, although § 906 is designed to protect minors, it would limit
advertisements aimed at adults as well as at children. In the context of “indecent”
material, the Supreme Court has reiterated that the government may not “reduce the
adult population . . . to reading only what is fit for children.”39 Thus, for example,
indecent material may not be banned from the airwaves for 24 hours a day,40 and
adults’ access to indecent material on the Internet may not be precluded in order to
protect children, at least if less restrictive means to protect children are available.41
This principle may not apply quite as forcefully to governmental restrictions of
commercial speech, however, as adults’ access to indecent material, unlike to
commercial speech, receives full First Amendment protection. Nevertheless, the
Justices’ discomfort with the paternalism they perceived in the Rhode Island statute
suggests that, even if a commercial speech restriction aimed at public health might
otherwise pass the Central Hudson test, it might not if it restricts adults’ access to
truthful, nonmisleading commercial messages.
Prior to 44 Liquormart, the U.S. Court of Appeals for the Fourth Circuit, in two
cases, upheld municipal restrictions on billboard advertisements of tobacco products
and alcoholic beverages.42 Then, after 44 Liquormart, the Supreme Court vacated
and remanded both cases “for further consideration in light of 44 Liquormart . . . .”
37
Id. at 1515 (Scalia, J., concurring).
38
Id. at 1517 (Thomas, J., concurring).
39
Bolger v. Youngs Drug Products, Inc., 463 U.S. 63, 73 (1983); Sable, supra note 5, 492
U.S. at 128.
40
Action for Children’s Television v. Federal Communications Commission, 932 F.2d 1504,
1509 (D.C. Cir. 1991), cert. denied, 503 U.S. 913 (1992).
41
Reno v. ACLU, 117 S. Ct. 2329 (1997). The Court wrote in that case:
In order to deny minors access to potentially harmful speech, the CDA
effectively suppresses a large amount of speech that adults have a
constitutional right to receive and to address to one another. That
burden on adult speech is unacceptable if less restrictive alternatives
would be at least as effective in achieving the legitimate purpose that
the statute was enacted to serve. . . . As we have explained, the
Government may not “reduc[e] the adult population . . . to . . . only
what is fit for children.”
Id. at 2346. There is a tension between the second and third quoted sentences with which the
Court did not deal: if there are no less restrictive alternatives available, then may the
government reduce the adult population to only what is fit for children?
42
Penn Advertising of Baltimore, Inc. v. Mayor and City Council of Baltimore, 63 F.3d 1318
(4th Cir. 1995), vacated and remanded, 116 S. Ct. 2575 (1996); Anheuser-Busch, Inc. v.
Schmoke, 63 F.3d 1305 (4th Cir. 1995), vacated and remanded, 116 S. Ct. 1821 (1996).
CRS-10
Next, the Fourth Circuit, after further consideration in light of 44 Liquormart,
readopted its previous decisions in both cases, and the Supreme Court subsequently
declined to review the cases.43 In Penn Advertising, the tobacco advertising case, the
court said simply that it was readopting its previous decision for the reasons it gave
in its opinion issued the same day in Anheuser-Busch, the alcoholic beverage
advertising case. In that case, the court wrote that, in its previous decision,
we recognized the reasonableness of Baltimore City’s legislative finding
that there is a “definite correlation between alcoholic beverage advertising
and underage drinking.” We also concluded that the regulation of
commercial speech is not more extensive than necessary to serve the
governmental interest. Recognizing that in the regulation of commercial
speech there is some latitude in the “fit” between the regulation and the
objective, we concluded that “no less restrictive means may be available to
advance the government’s interest.” While we acknowledged that the
geographical limitation on outdoor advertising may also reduce the
opportunities for adults to receive the information, we recognize that there
were numerous other means of advertising to adults that did not subject the
children to “involuntary and unavoidable solicitation [while] . . . walking to
school or playing in their neighborhood. . . .
In 44 Liquormart, by contrast, the State prohibited all advertising
throughout Rhode Island, “in any manner whatsoever,” of the price of
alcoholic beverages except for price tags or signs displayed with the
beverages and not visible from the street. . . . While Rhode Island’s blanket
ban on price advertising failed Central Hudson scrutiny, Baltimore’s
attempt to zone outdoor alcoholic beverage advertising into appropriate
areas survived our “close look” at the legislature’s means of accomplishing
its objective . . . . Baltimore’s ordinance expressly targets persons who
cannot be legal users of alcoholic beverages, not legal users as in Rhode
Island. More significantly, Baltimore does not ban outdoor advertising of
alcoholic beverages outright but merely restricts the time, place, and
manner of such advertisements. And Baltimore’s ordinance does not
foreclose the plethora of newspaper, magazine, radio, television, direct
mail, Internet, and other media available to Anheuser-Busch and its
competitors.44
The pertinent question, it seems, is whether the restrictions that § 906 would
impose would be more like those struck down in 44 Liquormart or those upheld in
the Fourth Circuit cases. Like the ordinances the Fourth Circuit upheld, § 906 would
not impose a total ban on any information sought to be advertised. However, even
though § 906 is intended to protect children, it would not be as narrowly focused on
advertisements accessible to children as are the ordinances the Fourth Circuit upheld.
It is not the case with § 906, as it was with the Baltimore ordinances, that it would
43
Penn Advertising v. Mayor and City Council of Baltimore, 101 F.3d 332 (4th Cir. 1996),
cert. denied, 117 S. Ct. 1569 (1997); Anheuser-Busch v. Schmoke, 101 F.3d 325 (4th Cir.
1996), cert. denied, 117 S. Ct. 1569 (1997).
44
101 F.3d at 327-329 (citations omitted).
CRS-11
“not ban outdoor advertising of alcoholic beverages outright but merely restricts the
time, place, and manner of such advertisements.” But, like Baltimore’s alcoholic
beverage ordinance, it would not, except with respect to the Internet, foreclose the
“plethora” of other media on which tobacco products may be advertised. At the same
time, however, federal law already reduces the size of this “plethora,” as it bans
advertisements for cigarettes, little cigars, and smokeless tobacco “on any medium of
electronic communication subject to the jurisdiction of the Federal Communications
Commission.”45 This would be a factor that could be cited to argue that § 906 would
have a more restrictive effect on adults than might appear from its face. In addition,
§ 906 would restrict the content of advertisements in media in which it would
continue to permit advertisements, which is something the Baltimore ordinances do
not do.
In conclusion, it appears that the degree of restrictiveness of § 906 would lie
somewhere between that of the provision struck down in 44 Liquormart and those
upheld in the Fourth Circuit cases. Some of the prohibitions of § 906 would seem to
include the sort of paternalism to which the Court objected in 44 Liquormart, but
others of its prohibitions seem more narrowly focused on protecting minors. We will
distinguish among these in the next section of this memorandum.
First, however, we offer a more general comment. The decision in 44
Liquormart might, on the one hand, be viewed as part of a trend on the Court’s part
to increase the First Amendment protection it accords to commercial speech. If this
is in fact a trend, then the likelihood of its striking down substantial portions of § 906
would increase. On the other hand, the Court in 44 Liquormart, as noted above,
seemed to view the Rhode Island statute in question as particularly poorly thoughtout, with the Court commenting “that any connection between the ban and a
significant change in alcohol consumption would be purely fortuitous,” and that “[i]t
is perfectly obvious that alternative forms of speech would be more likely to achieve
the State’s goal of promoting temperance.” Although § 906 would restrict more
speech than the Baltimore ordinances do, it does not appear poorly thought-out in the
manner that the Supreme Court seemed to think the Rhode Island statute in 44
Liquormart was. But now we must examine the 18 prohibitions in § 906 individually,
as that is how they will stand or fall.
Conclusions
We will list each the restrictions as summarized at the beginning of this
memorandum and consider whether it would violate the First Amendment. This
necessitates applying the four prongs of the Central Hudson test. However, we will
take as a given that all the restrictions would pass the first two prongs, as tobacco
advertising is legal and we will presume it is not misleading, and as restricting it would
serve the substantial governmental interest of promoting public health. In addition,
to the extent that the prohibitions would reduce children’s exposure to tobacco
advertisements, we will assume that they would directly and materially advance the
governmental interest in reducing underage smoking. The constitutionality of most
of the restrictions, therefore, will apparently turn on the fourth prong, which asks
45
15 U.S.C. §§ 1335, 4402.
CRS-12
whether, for each restriction, there is a reasonable “fit” between the government’s
means and ends. The restriction must be more than merely rational, but need not
necessarily be the least restrictive means available.
(1) “outdoor tobacco product advertising, including billboards, posters,” etc. The
constitutionality of this restriction is difficult to predict. If it were limited, as the
Baltimore ordinance is, to outdoor advertising within 1,000 feet of a school or
playground, then there would be a precedent for its constitutionality. The restriction
as it stands clearly would reduce children’s exposure to tobacco advertising, so it
would seem likely to satisfy the third prong of Central Hudson. But it would also
reduce adults exposure to tobacco advertising, so the government would apparently
have to demonstrate that a restriction limited as the Baltimore ordinance is would
leave minors overly exposed to tobacco advertising, and would not overly restrict
adults’ access to tobacco advertising.
(2) advertising “tobacco products in any arena or stadium where athletic, musical,
artistic, or other social or cultural events or activities occur.” This seems more likely
than the outdoor advertising restriction to be found unconstitutionally overbroad,
because it does not exempt events or activities that children are unlikely to attend.
The government could accomplish its aim of protecting children without banning
advertisements at performances from which children are excluded because they are
X-rated (though, admittedly, such performances usually occur in theaters or bars
rather than in arenas or stadiums). There are also performances from which children
are not excluded, but which relatively few children attend, such as classical music
concerts (other than those designed for children). If few children typically attend a
particular type of performance, then one might challenge this restriction on the ground
that it would not materially advance the governmental interest in protecting children,
and would therefore fail the third prong. Or one might challenge it on the ground that
it would unreasonably interfere with the rights of adults, and would therefore fail the
fourth prong. These arguments would apply on the assumption that the
advertisements in question could be easily taken up and down; if they were relatively
permanent, then there would be a stronger argument that banning them would be
constitutional.
(3) the use of “a human image or a cartoon character or cartoon-type character in
[tobacco] advertising, labeling, or promotional material.” If the government could
present evidence that children respond particularly to human images and cartoon
characters, then this restriction would apparently be constitutional to the extent that
it would not overly restrict adults’ access to the proscribed pictures.46 It would,
however, apparently be unconstitutional to the extent that it would apply to X-rated
material unavailable to children, and perhaps also to the extent that it would apply to
material with an intellectual content that would attract few minors.
(4) tobacco product advertising on the Internet “unless such an advertisement is
inaccessible in or from the United States.” Although the Supreme Court held in Reno
v. ACLU that the government may not ban all indecent material from the Internet,
46
Pictures as well as words are protected by the First Amendment. See, Manuel Enterprises
v. Day, 370 U.S. 478 (1962).
CRS-13
indecent material, unlike advertising, is fully protected under the First Amendment.
Nevertheless, this restriction might well be found not to represent a reasonable “fit”
under Central Hudson’s the fourth prong. There are Web sites available to adults
only, by subscription only, which apparently could be excluded from the ban without
significantly interfering with the goal of protecting minors. There are also public Web
sites containing academic or intellectual material of little interest to minors, and it
seems unlikely that minors would visit them solely to view tobacco advertisements.
(5) for each manufacturer and retailer, more than a specified number of “point-of-sale
advertisements in or at each location at which tobacco products are offered for sale.”
Such advertisements could be no larger than a specified size, consist of other than
black letters on a white background, or be “located within 2 feet of any fixture on
which candy is displayed for sale.” If the government could present evidence that this
restriction could reduce underage smoking, then it would seem likely to be upheld,
as it would allow some point-of-sale advertisements. An opponent of the restriction
could argue, however, that the size restriction would too severely limit the amount of
information that could be communicated to adults.
(6) playing or viewing of audio and video advertisements at points of sale. If the
government could present evidence that children respond particularly to such
advertisements, then this restriction would seem likely to be found constitutional, as
it would not deprive adults of access to any written message that a tobacco company
wished to communicate.
(7) “[d]isplay fixtures in the form of signs consisting of brand name and price that
are . . . larger than 2 inches in height.” If the government could present evidence
that children respond particularly to such signs, then this restriction would seem likely
to be found constitutional, as it would not deprive adults of access to any written
message that a tobacco company wished to communicate.
(8) use of “a trade or brand name of a nontobacco product as the trade or brand name
for a cigarette or smokeless tobacco product,” except for trade or brand names in use
on or before January 1, 1995. In Friedman v. Rogers, the Supreme Court held that
a state statute that prohibited optometrists from doing business under a trade name
rather than under their own names did not violate the First Amendment.47 The Court
noted that “[t]he use of trade names . . . is a form of commercial speech and nothing
more,” and “a form of commercial speech that has no intrinsic meaning. A trade name
conveys no information about the price and nature of the services offered . . . until it
acquires meaning over a period of time by associations formed in the minds of the
public between the name and some standards of price or quality.”48
(9) advertising tobacco products in a medium other than a newspaper, magazine,
billboard, poster, placard, nonpoint-of-sale promotional material (including direct
47
48
440 U.S. 1 (1979).
Id. at 11-12. Although Friedman was decided before Central Hudson, and the Court
therefore did not decide it by applying the Central Hudson test, the Court has cited it with
approval in a decision subsequent to Central Hudson: San Francisco Arts & Athletics, Inc.
v. United States Olympic Committee, 483 U.S. 522, 535 (1987).
CRS-14
mail), point-of-sale promotional material, audio or visual formats delivered at a pointof-sale, unless the manufacturer, distributor, or retailer that intends to advertise
notifies the Commissioner of the Food and Drug Administration not less than 30 days
prior to the date on which such medium is to be used. Section 906 does not state the
purpose of this provision, nor specify what if anything the FDA may do with this
information. Nor is it clear what the manufacturer, distributor, or retailer must notify
the FDA of. If it is merely of the fact that it intends to advertise, then the provision
might be upheld as analogous to requirements that groups notify authorities in
advance of staging parades, in order to enable the government to regulate their “time,
place, and manner.”
(10) payments “by any manufacturer, distributor, or retailer for the placement of any
tobacco product or tobacco product package or advertisement — (i) as a prop in any
television program or motion picture produced for viewing by the general public; or
(ii) in a video or on a video game machine.” This provision would, in effect, prohibit
particular forms of tobacco advertising, without regard to whether such advertising
would be viewed by minors. It would appear unconstitutionally overbroad to the
extent that it does not exclude X-rated material, and perhaps also to the extent that
it does not exclude material with an intellectual content that would attract few minors.
(11) direct or indirect payments “by any manufacturer, distributor, or retailer to any
entity for the purpose of promoting the image or use of a tobacco product through
print or film media that appeals to individuals under 18 years of age or through a live
performance by an entertainment artist that appeals to such individuals.” If the word
“appeals” in this provision were modified with a word like “significantly,” then it
would seem less subject to constitutional challenge. Without such a modifier, it could
be construed to apply not merely to material aimed at children or at families, but to
material aimed at adults that may appeal to a small number of minors.
(12) labeling or advertising for a tobacco product in other than black text on a white
background, except (i) in any facility where vending machines and self-service displays
are permitted under this chapter if the advertising involved . . . is not visible from
outside of the facility; and . . . is affixed to a wall or fixture in the facility,”49 or (ii)
that appears in any “adult publication,” which § 906 would define as publications with
fewer than a specified percentage or number of readers under 18. This provision
apparently would not apply to facilities that exclude minors (see footnote 2, supra),
and would not apply to advertisements in adult publications. As “adult publication”
would include not merely X-rated publications prohibited to minors, but all
publications with fewer than a specified percentage or number of readers under 18,
this restriction would not, like some of the previous restrictions, apply to material of
an intellectual level that would appeal to few minors. Consequently, it appears more
likely to be found constitutional.
49
Under § 908(i)(1), tobacco vending machines would be restricted to facilities that exclude
individuals under 18. The intention presumably is the same for self-service displays, but the
omission of § 908(j)(1)(C), which is referred to in § 908(i)(2), from the bill (at least from the
version on the Internet) causes this intention not to be stated.
CRS-15
(13) tobacco advertising in audio format unless “limited to words only with no music
or sound effects.” Not being at all limited to advertising to which minors are exposed,
this provision might be found unconstitutional.
(14) tobacco advertising in video format unless “limited to static black text only on
a white background,” with any audio in the advertising limited as in # 13. Not being
at all limited to advertising to which minors are exposed, this provision might be
found unconstitutional.
(15) marketing, licensing, distributing, or selling any non-tobacco item or service
bearing the brand name, “logo, symbol, motto, selling message, recognizable color or
pattern of colors, or any other indicia of product identification similar or identifiable
to those used for any brand of tobacco products.” This restriction seems the flip side
of restriction # 8: whereas # 8 would prohibit nontobacco names for tobacco
products, this one would prohibit tobacco names for nontobacco products. This
restriction might then, as might # 8, be upheld on the basis of Friedman v. Rogers,
supra. A case might be made, however, that Friedman v. Rogers is not as apropos
here. The purpose of prohibiting tobacco brand names on nontobacco products
arguably would be less to protect consumers from being misled when they purchase
nontobacco products, as it would be to restrict a particular form of tobacco
advertising. If so, the restriction might be unconstitutional because it would not be
limited to nontobacco products used by children to a significant degree.
(16) offering to any person purchasing tobacco products any gift or item other than
a tobacco product in consideration of the purchase, or of furnishing evidence, such
as proofs-of-purchase, of a purchase. This provision would not limit speech and
consequently would raise no First Amendment issue.
(17) sponsoring “any athletic, musical, artistic, or other social or cultural event, or any
entry or team in any event, in which the brand name, “logo, symbol, motto, selling
message, recognizable color or pattern of colors, or any other indicia of product
identification similar or identifiable to those used for tobacco products is used.” Our
analysis of # 15 seems apropos here.
(18) sponsoring “any athletic, musical, artistic, or other social or cultural event in the
name of the corporation which manufactures the tobacco product” unless (i) both the
corporate name and the corporation were registered and in used in the United States
prior to January 1, 1995; and (ii) the corporate name does not include any brand
name, “logo, symbol, motto, selling message, recognizable color or pattern of colors,
or any other indicia of product identification similar or identifiable with, those used
for any brand of tobacco products.” Our analysis of # 15 seems apropos here.